Countering a DMCA Notice
Chances are you landed here because you’ve received a DMCA notice regarding material on your blog. Although we’ve removed the content as required by the law and you can’t re-upload it, that’s certainly not the end of the story! If you believe that you have rights to post the material (if, for example, it’s fair use) or a mistake has otherwise been made (such as misidentification of the material), you can submit a counter-notice. Learn more about the counter-notice procedure from the EFF.
So, what is fair use?
There aren’t hard and fast rules when it comes to defining fair use. However, the Copyright Act sets out four factors for courts to consider:
- The purpose and character of the use: Why and how did you use the material? Using content for criticism, comment, news reporting, teaching, scholarship or research is usually fair. Additionally, using material in a transformative manner, that is to say, in a manner that adds new expression, meaning, or insight, is also more likely to be considered fair use over an exact reproduction of a work. What’s more, nonprofit use is favored over commercial use.
- The nature of the copyrighted work: Is the original factual or fiction, published or unpublished? Factual and published works are less protected, so its use is more likely to be considered fair.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole: How much of the material did you use? If the “heart” (the most memorable or significant portion) or the majority of a work wasn’t used, it’s more likely to be considered fair.
- The effect of the use upon the potential market for, or value of, the copyrighted work: Does your use target a different market/audience? If so, it’s more like to be fair use. It’s important to note that although criticism or parody may reduce a market, it still may be fair because of its transformative nature. In other words, if your criticism of a product influences people to stop buying the product, that doesn’t count as having an “effect on the market for the work” under copyright law.
Here are some examples of situations where you may be permitted to use copyrighted material without prior permission from the owner:
- Including screenshots of a website/profile/communication that demonstrate an issue that you’re criticizing or claim you’re making
- Incorporating a brief quote from someone else’s blog for the purpose of commenting on their opinion
- Altering an image or photograph in a satirical manner
Here are some resources to learn more about fair use:
- Copyright.gov – Fair Use
- EFF – The Bloggers’ FAQ on Intellectual Property
- Stanford University Libraries – Fair Use
- Nolo – The ‘Fair Use’ Rule: When Use of Copyrighted Material is Acceptable
If you’re uncertain as to whether a specific use qualifies as fair use, please consult a copyright attorney.